Minister for Immigration and Multicultural and Indigenous Affairs v Hidalgo

The case of Minister for Immigration and Multicultural and Indigenous Affairs v Hidalgo involved the respondent, a Chilean national, who sought a Subclass 835 (Remaining Relative) visa. The Tribunal had to determine whether the respondent's status as "usually resident in Australia" precluded the grant of the visa. The respondent had arrived in Australia on a Subclass 686 (Tourist Long Stay) visa in 1988, departed in 1999, and re-entered on the same visa, which was set to expire in December 1999. She applied for a visa on the basis of being a remaining relative of her father, who was residing in Australia. The Tribunal found that the respondent had usually resided in Australia at the time of her visa application and during the period of the Tribunal's decision.

The legal issue the court had to decide was whether the respondent's status as "usually resident in Australia" precluded her from being granted a Subclass 835 visa. The court examined subregulation 1.15(1)(c)(i) of the Migration Regulations, which required the Tribunal to assess where the respondent usually resided and where her overseas near relatives resided. The Tribunal concluded that the concept of "usual residence" included both physical presence and an intention to treat a place as home for at least the time being, but not necessarily forever. The court referred to the High Court's decision in Koitaki and the Full Federal Court's decision in Scargill to support its findings on the concept of "usual residence."

The court reasoned that the respondent's physical presence in Australia and her intention to reside there, as evidenced by her application for a visa and her subsequent living arrangements, established that she was "usually resident" in Australia. The court held that this finding did not preclude her from being granted the visa, as the regulation did not require the respondent to prove the existence of an overseas near relative. The court dismissed the application with costs.

The final orders were that the application was dismissed with costs to be taxed if not otherwise agreed.